THE STATE OF KANSAS, ex rel. STATE BOARD OF HEALING ARTS,Appellee, v. STANLEY W. BEYRLE, Appellant and JANET ROYSTON, R.N.

SYLLABUS BY THE COURT

1. K.S.A. 60-2101(b), allowing direct appeals to the Supreme Court from a final
judgment in any civil action in which a statute of this state or of the United States
is declared to be unconstitutional, specifically requires the order appealed from
to be a "final judgment."

2. A final judgment is one which finally decides and disposes of the entire merits of
the controversy and reserves no further questions or directions for the future or
further action of the court.

3. Under the facts of this case, the order appealed from is not a final judgment as
required by K.S.A. 60-2101(b), and the Supreme Court has no jurisdiction to
hear the appeal.

Stephen B. Plummer, of Wichita, argued the cause and Randall J.
Price, of Wichita, was with him
on the brief for appellant Stanley W. Beyrle.

Mark W. Stafford, of State Board of Healing Arts, of Topeka, argued the
cause and was on the
brief for appellee.

The opinion of the court was delivered by

LARSON, J.: This is an attempted interlocutory appeal taken by Stanley W.
Beyrle from the trial court's order of partial judgment finding K.S.A. 65-2872a
unconstitutional.

The State of Kansas, on relation of the State Board of Healing Arts, sued
naturopath Beyrle, contending he violated the Healing Arts Act by using the designation
N.M.D. in connection with his name, by issuing an order for a prescription-only drug,
and by engaging in a system to diagnose, ascertain, cure, relieve, palliate, adjust, or
correct any human disease, ailment, deformity, or injury. The Board requested that
Beyrle be prohibited by injunction or quo warranto from engaging in acts in violation of
the Healing Arts Act and that K.S.A. 65-2872a be declared to violate Article 2, § 1 of the
Kansas Constitution.

In his answer, Beyrle contended he was permitted by K.S.A. 65-2872a to
practice as a naturopath in Kansas without approval of the Board. He admitted to using
the title N.M.D., but denied this or any of his other actions violated the Healing Arts Act.
Beyrle also filed a counterclaim against the Board for damages. The Board responded
to the counterclaim with a general denial and an allegation of immunity.

The Board then moved for partial judgment on the pleadings, contending K.S.A.
65-2872a violates Article 2, § 1 of the Kansas Constitution by unlawfully delegating
legislative authority to a private person or entity. Beyrle opposed the motion, and a
hearing was held.

The trial court found Gumbhir v. Kansas State Board of Pharmacy, 228 Kan.
579, 618 P.2d 837 (1980), controlling and declared the statute to be unconstitutional in
violation of Article 2, § 1 of the Kansas Constitution. The trial court ruled the provision
was severable from the remaining portions of the Healing Arts Act. The trial court,
however, specifically reserved judgment on whether Beyrle unlawfully prescribed drugs
or exceeded his statutory authority. The trial court further warned: "Defendant is
advised that the practice of naturopathy is no longer authorized by statute, and that all
activity within the purview of the healing arts act must cease until such time as the
legislature appropriately grants the authority." The trial court ordered the case stayed
pending appeal of the order.

Although the order stated "the Court grants Defendant's motion for permission to
take an interlocutory appeal," the trial court did not, as required by K.S.A. 60-2102(b),
find that "such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation" so that an
application could be made for a discretionary appeal. Nor did Beyrle comply with or
attempt to follow the required procedure of Supreme Court Rule 4.01 (1996 Kan. Ct. R.
Annot. 23) in order to obtain the necessary permission from the Court of Appeals to
accept an interlocutory appeal.

Beyrle filed a timely notice of appeal. However, his docketing statement alleged
the order appealed from was a final order. In answer to the question of whether the
district court directed an entry of a judgment in accordance with K.S.A. 60-254(b), the
form indicated the question was not applicable. The docketing statement failed to list
any statutory authority for appeal.

In response to our order to show cause as to why we should not dismiss the
appeal as not being from a final judgment, Beyrle now suggests we have jurisdiction
under K.S.A. 60-2102(a)(2), relating to appeals as a matter of right from orders granting
an injunction or quo warranto relief.

The journal entry of partial judgment on the pleadings is not a final order.

The apparent basis for jurisdiction for this appeal is K.S.A. 60-2101(b), which
provides in part: "An appeal from a final judgment of a district court in any civil action in
which a statute of this state or of the United States has been held unconstitutional shall
be taken directly to the supreme court." This statute specifically requires the order
appealed from to be a "final judgment."

It is clear from the pleadings, the motion for partial judgment, and the journal
entry of judgment that the order appealed from was not a final judgment as required by
K.S.A. 60-2101(b). K.S.A. 60-254(a) defines a judgment as "the final determination of
the rights of the parties in an action." The order here only involved a determination of
one issue in the Board's action, that of the constitutionality of K.S.A. 65-2872a. There
was no adjudication of whether Beyrle had actually violated any of the provisions of the
Healing Arts Act. These issues remain pending for later determination, as the entire
case was stayed in order to allow Beyrle to pursue an appeal on the constitutionality of
the statute granting him the right to practice naturopathy without Board approval.

"'No definition of "final decision" is contained in the statute but this court has previously
construed
it to mean, "one which finally decides and disposes of the entire merits of the controversy, and
reserves
no further questions or directions for the future or further action of the court." [Citations
omitted.]'"

Honeycutt cites 6 Vernon's Kansas C. Civ. Proc. § 60-2102, Author's
Comments,
§ 2102.2 (1967) and 2 Gard's Kansas C. Civ. Proc. 2d Annot. § 60-2102, Comments
(1979), and states: "In Gard, the author commented that a '"final decision" . . . is really
self-defining. Obviously it is an order which definitely terminates a right or liability
involved in the action, or which grants or refuses a remedy as a terminal act in the
case.'" 251 Kan. at 457.

Rather than terminating a right or liability in the present case, the trial court's
order established the possibility of a legal liability that still required further factual and
legal adjudication. The journal entry of judgment dated August 1, 1996, is not a final
judgment.

Because the order attempted to be appealed from is not a final judgment, this
might bring into consideration the provisions of K.S.A. 60-254(b), which states: "[T]he
court may direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment." No attempt was made
to satisfy the requirements of K.S.A. 60-254(b). The judgment lacked the required
determinations, see City of Salina v. Star B, Inc., 241 Kan. 692, 693, 739 P.2d 933
(1987), and it is not possible to now amend the order so as to include the required
findings within the order. See Razook v. Kemp, 236 Kan. 156, 158-59, 690 P.2d
376
(1984). Thus, the order cannot be deemed appealable pursuant to K.S.A. 60-254(b).

As the order is not a final judgment, it is not the proper subject of an appeal
unless the requirements for requesting a discretionary appeal were followed. Because
no attempt was made to follow K.S.A. 60-254(b) or Supreme Court Rule 4.01, we lack
jurisdiction to hear the case under K.S.A. 60-2101(b).

The order does not grant injunctive or quo warranto relief.

Beyrle now attempts to argue that we have jurisdiction of his appeal as a matter
of right because it is from an order granting injunctive or quo warranto relief pursuant to
K.S.A. 60-2102(a)(2). This statute provides:

"(a) As of right. Except for any order or final decision of a district
magistrate judge, the appellate
jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:

. . . .

(2) An order that grants, continues, modifies, refuses or dissolves an injunction, or an
order that
grants or refuses relief in the form of mandamus, quo warranto or habeas corpus."

First, we point out that this statute grants jurisdiction to the Court of Appeals, not
the Supreme Court. Second, although the Board's original petition does seek injunctive
or quo warranto relief, the journal entry of the partial judgment does not grant either
type of relief. The order was simply declaratory and does not enjoin Beyrle from
practicing naturopathy. All the order does is put Beyrle on notice that "the practice of
naturopathy is no longer authorized by statute, and that all activity within the purview of
the healing arts act must cease until such time as the legislature appropriately grants
the authority."

We do not construe this wording as a grant of either quo warranto relief or an
injunction. The court had not made any determination that Beyrle was engaging in the
practice of naturopathy and specifically stated that it reserved judgment on whether he
had exceeded his statutory authority. Rather than invoking any existing powers if
Beyrle continued to engage in naturopathy, the court simply placed him on notice that
future practice of naturopathy would make him subject to charges of violating the
Healing Arts Act.

The court did not declare that it was granting the Board's request in its original
petition to enjoin Beyrle, nor did the Board's motion requesting partial judgment on the
pleadings request such relief. Thus, K.S.A. 60-2102(a)(2) also does not support
jurisdiction in this case.

No other provision appears to confer jurisdiction on us, and none is cited by
Beyrle. We do not have jurisdiction over the attempted appeal, which is therefore
dismissed.